A Living Will or Advance Decision is a document in which you set out that, under certain circumstances, you refuse consent to the giving or continuation of certain forms of medical treatment. Seldom has this potentially been so relevant to so many of us as now, during the Coronavirus pandemic.
What does a Living Will or Advance Decision usually say?
Typically, a Living Will or Advance Decision might set out that if you are unconscious for a certain length of time, or are in constant pain, or have a terminal or degenerative illness from which it is highly unlikely that you will recover, you wish to refuse certain forms of medical intervention aimed at prolonging your life. Examples would be artificial feeding and hydration, resuscitation or blood transfusions.
If you make an Advance Decision and your healthcare provider is aware that it exists and it applies to your current circumstances, they are bound to follow it even if they do not believe that it is in your best interests to do so. If they fail to follow the instructions in your Advance Decision, they could face civil or even criminal prosecution.
If you lost capacity without making an Advance Decision to refuse medical treatment, your healthcare professionals would have to act in what they believe are your best interests, but this may not reflect what you would have wished. Alternatively, you could make a Lasting Power of Attorney for Health and Welfare, and in that case your attorneys would be under a duty to make decisions on your behalf based on what they believe would be in your best interests. However, crucially, a person making an Advance Decision can refuse treatment even if it may not seem to be in their best interests to do so.
You cannot require that a particular treatment is provided to you in an Advance Decision – the legal effect of the Advance Decision is limited to a refusal of consent to treatment. Illegal acts such as euthanasia cannot be requested in an Advance Decision. You cannot use an Advance Decision to refuse basic care to keep you comfortable such as food and water by mouth, basic hygiene and providing warmth. Acts of that nature are not viewed as medical treatment, and therefore cannot be refused. However, you can refuse artificial nutrition and hydration, as those are seen as medical treatments.
What’s the difference between a Living Will or Advance Decision and a Lasting Power of Attorney for Health and Welfare?
This depends on which document was created first. If an Advance Decision is created after a Lasting Power of Attorney for Health and Welfare, the attorneys cannot consent to any treatment refused in the Advance Decision. If a Lasting Power of Attorney for Health and Welfare is created after an Advance Decision, the creation of the Lasting Power of Attorney will make the Advance Decision invalid if the Lasting Power of Attorney gives the attorneys the authority to make decisions about the same treatment. For example, if your Advance Decision includes provisions about refusing life-sustaining treatment, subsequently giving your attorneys authority to make decisions regarding life-sustaining treatment would make that provision in your Advance Decision invalid. If you still wish your prior Advance Decision to be taken into account, the Office of the Public Guardian advises that reference to your Advance Decision should be made in the instructions in your Lasting Power of Attorney and a copy of the Advance Decision should be included when the Lasting Power of Attorney is sent to the Office of the Public Guardian for registration.
It is the maker’s responsibility to make others aware that their Living Will or Advance Decision exists. It is a good idea to make relatives and close friends aware that you have one and to ask for a copy to be placed with your GP, hospital records and summary care record. You should also carry a copy on your person, for example in your wallet, or carry a card or bracelet on you detailing the location of your Advance Decision.